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^^FPARTkiENTOF 

iRAMSPORTATlON 

• .or.KET OPEnATIOMS U.S. DEPARTMEN T O F TRANSPORTATIO N 

OFFICE OF HEARINGS 

;;-?l^^r|^;3 p 1:5R WASHINGTON, D.C. 

IN THE MATTER OF MAR 1 9. 2012 

EMPIRE FLIGHT ACADEMY "EAR/N Q DOCKET 

Docket No. FAA-2011-0290 (CP10EA0004) 

Administrative Law Judge (ALJ) J.E. Sullivan 

AGENCY^S PRE-HEARING BRIEF 

COMES NOW Complainant (the Agency), by and through its designated 

representative, the Regional Counsel for the Eastern Region and his duly designated 

agents, and submits Agency's Pre-Hearing Brief in accordance with the Order of the ALJ 

in this proceeding, dated November 22, 2011. 

THE COMPLAINT 

The Complaint, as amended, alleges as follows: 

1. At ail times relevant herein, Empire Flight Academy was the operator of a 

Diamond DA-20 aircraft, identification number N383CA (hereinafter "the 

aircraft"). 

2. On or about April 8, 2009, during takeoff roll of the aircraft by a student 

pilot, there was a vibration in the nose gear area. 

3. The student pilot reported the vibration that he had experienced to Empire 

Flight Academy. 

4. At some point between April 8, 2009 and June I, 2009, Empire Flight 

Academy re-assembled the wheel assembly on the aircraft. 

5. No log entry was ever made of the re-assembling of the wheel assembly 

on the aircraft. 

6. The re-assembling of the wheel assembly on the aircraft was not approved 

for return to service by an authorized person. 
7. On or about June 1, 2009, Empire Flight Academy proceeded to operate 

the aircraft on a flight to Republic Airport, Farmingdale, NY (hereinafter 

"the June 1 flight"). 

8. Prior to the June 1 flight, no log entry was made of the re-assembling of 

the wheel assembly on the aircraft. 

9. Prior to the June I flight, the re-assembling of the wheel assembly on the 

aircraft was not approved for return to service by an authorized person 

10. Empire Flight Academy thereby operated the aircraft on June 1, 2010 

when the aircraft was not in an airworthy condition. 

The Complaint alleges that Complainant violated, specifically, the following sections 

of the Federal Aviation Regulations (FARs): 

a. §91.405(b), which states that each owner or operator of an aircraft shall 

ensure that maintenance personnel make appropriate entries in the aircraft 

maintenance records indicating the aircraft has been approved for return to 

service. 

b. §91.407(a)(1), which states that no person may operate an aircraft that has 

undergone maintenance, preventive maintenance, rebuilding, or alteration 

unless it has been approved for return to service by a person authorized 

under Section 43.7 of the Federal Aviation Regulations. 

c. i^91.407(a)(2), which states that no person may operate an aircraft that has 

undergone maintenance, preventive maintenance, rebuilding, or alteration 

unless the maintenance record entry required by Sections 43.9 or 43.11, as 

applicablQ, of the"Fe"derarAviation Regulations has been made. 

d. §91.7(a), which states that no person may operate an aircraft in an 

unairworthy condition. 

Although Respondent did not admit any of the allegations in the Complaint, the 

overwhelming, undisputed evidence support all the allegations in the Complaint, as shall 

be demonstrated below. 
ISSLfES 

1) Whether Empire Flight Academy (EFA) was the operator of aircraft N383CA 

during the relevant time period (i.e., April 8, 2009 through June 1, 2009)? 

2) Whether, on April 8, 2009, during takeoff roll of the aircraft by a student pilot, 

there was a vibration in the nose gear area? 

3) Whether the student pilot reported the vibration that he had experienced to EFA? 

4) Whether, at some point between April 8, 2009 and Junel, 2009, EFA reassembled the wheel assembly on the aircraft? 

5) Whether, on June 1, 2009, EFA operated the aircraft on a flight to Republic 

Airpon, Farmingdale, NY? 

6) Whether, prior to the June I, 2009 flight, a log entry was made of the reassembling of the wheel assembly on the aircraft? 

7) Whether, prior to the June 1, 2009 flight, the re-assembling of the wheel assembly 

on the aircraft was approved for return to service by an authorized person? 

8) Whether EFA violated §91.405(b) of the Federal Aviation Regulations (FARs)? 

9) Whether EFA thus violated §91.407(a)( 1) of the FARs? 

10)Whether EFA thus violated §91.407(a)(2) of the FARs? 

11) Whether EFA thus violated §91.7(a) of the FARs? 

12) Whether a civil penalty of $15,300 is appropriate? 

ARGLFMENT 

(1) EFA was the operator of aircraft N383CA during the time period April 8. 2009 

through June 1. 2009. 

The evidence that EFA was the operator - in fact, the sole operator - of the 

aircraft during the time period in question included the following: 
(a) The Agency, on November 10, 2009, issued a Notice of Proposed Civil 

Penalty (NOPCP) to EFA with substantially the same allegations as contained 

in the Complaint. Exhibit C-1.' In response to this action, John Zaremba, the 

president of EFA, wrote a letter to the FAA in which he admitted that EFA 

both operated and maintained aircraft N383CA. Exhibit C-2.^ 

(b) As reflected in FAA registration records and as stated in Respondent's 

Motion for Decision dated June 3, 2011, at all relevant times, Clyde Air 

Leasing was the owner of the N383CA aircraft. Exhibit C-4. According to a 

statement from Clyde Air Leasing, the aircraft was on lease with EFA during 

the entire year 2009 at Republic Airport. Exhibit C-5. Clyde Air Leasing, in 

fact, provided copies of its monthly leaseback statements with EFA during the 

time period April to June 2009, reflecting that EFA leased the aircraft from 

Clyde Air Leasing and was the operator of the aircraft. Exhibit C-6. 

(c) During his investigation of the incident, Aviation Safety Inspector (ASI) 

Misiano discovered that EFA, as a flight school, continuously operated and 

maintained the aircraft for flight instruction purposes during April through 

June of 2009. Exhibit C-7, Paragraph 4. Additionally, ASI Misiano's 

investigation revealed that EFA specifically authorized the flights dated April 

8, 2009 and June 1, 2009 that resulted in incidents and that EFA performed 

maintenance on the aircraft's nose wheel assembly during that period. Exhibit 

' The exhibits referenced herein are contained in the Agency's Exhibit/Witness List. 

- While the incorporation record provided by Mr. Zaremba indicated that the name of the 

corporation as of February 20, 2009 was Empire Flight, Inc., public records indicate that 

the name of the corporation was changed to Empire Flight Academy, Inc., on May 1, 

2009. Exhibit C-3. 
C-7, Paragraph 5. The information relied upon by ASI Misiano to support his 

conclusion included a written statement from Samer El Sayed, dated June 5, 

2009, in which Mr. El Sayed stated that he performed maintenance on the 

aircraft on behalf of EFA (Exhibit C-8); flight maintenance logs for the 

N383CA aircraft from April 7, 2009 through June 1, 2009, which bear the 

name of EFA (Exhibit C-9); logbook return to service of the aircraft after the 

June 1, 2009 incident, which bears the name of EFA (Exhibit C-10); and 

interviews with EFA personnel, including Paul Masaracchia together with Mr. 

El Sayed; Paul Masaracchia by himself; David Dunlop; John Sesku; and John 

Zaremba (Exhibits C-11, C-12, C-26, C-13, and C-14, respectively). 

It is anticipated that Steven Hall of Clyde Air Leasing will testify at the hearing 

about the arrangement with EFA whereby the latter was the operator of the aircraft. It is 

anticipated that ASI Misiano will testify about his investigation which led him to the 

conclusion that EFA operated the aircraft. 

In §1.1 of the FARs, "operate" is defined as "cause to use or authorize to use aircraft, 

for the purpose of . . . air navigation." As EFA authorized use of the aircraft in its 

capacity as a flight school, it operated the aircraft during the time period in question. 

(2) On April 8. 2009. during takeoff roll of the aircraft by a student pilot, there was a 

vibration in the nose gear area. 

That there was a vibration of the nose gear area is evidenced by the statement of 

the student pilot, Eric Claros, who operated the aircraft during the flight on April 8, 2009, 

as well as a statement from EFA mechanic Mr. El Sayed, to whom Mr. Claros reported 
the incident. Exhibit C-8; Exhibit C-15. It is anticipated that Mr. Claros will testify as 

such at the hearing. 

(3) The student pilot reported the vibration that he had experienced to EFA. 

That Mr. Claros reported the vibration that he had experienced to EFA is 

evidenced by his statement, as well as the statement of EFA mechanic Mr. El Sayed, who 

wrote that Mr. Claros "indicated to me that there was a nose vibration upon landing." 

Exhibit C-8; Exhibit C-15. It is anticipated that Mr. Claros will testify as such at the 

hearing. 

(4) At some point between April 8. 2009 and June 1. 2009. EFA re-assembled the 

wheel assembly on the aircraft. 

That EFA re-assembled the wheel assembly on the aircraft at some point between 

April 8, 2009 and June 1, 2009 is evidenced by (a) the fact that Mr. El Sayed, on April 8, 

2009, removed the nosewheel assembly for an inspection but, in the process, injured his 

thumb before he completed the maintenance and did not re-install the nosewheel 

assembly back on the N383CA aircraft; (b) interviews that ASI Misiano had with EFA 

mechanics and managers, during which nobody was able to tell him who had reassembled 

the wheel assembly on the aircraft; and (c) that fact that the aircraft was able to be flown 

on June 1, 2009, as found during ASI Misiano's investigation, which would indicate that 

the wheel assembly was put back at some point. Exhibit C-8; Exhibit C-16, Paragraphs 

6-7. ft is anticipated that ASI Misiano will testify as such at the hearing. 

(5) On June 1. 2009. EFA operated the aircraft on a flight to Republic Airport. 

Farmingdale. NY. 
That aircraft N383CA was operated to Republic Airport on June 1, 2009 was 

found by ASI Misiano during his investigation, and it is anticipated that he will testify as 

such at the hearing. Exhibit C-16, Paragraph 3. Aircraft logs reflected such a flight. 

Exhibit C-9, page 2. The evidence that EFA was the operator of the aircraft on this 

flight is described above. 

(6) Prior to the June 1. 2009 flight, no log entry was made of the re-assembling of the 

wheel assembly on the aircraft. 

That no log entry was made of the re-assembling of the wheel assembly on the 

aircraft is evidenced by the observations of ASI Misiano during his investigation, and by 

the logbooks that he inspected. ASI Misiano reviewed all the maintenance logs for the 

N383CA aircraft during the period April 8, 2009 through June 1, 2009 and found no 

record entry of the reassembly of the nosewheel assembly on the aircraft. Exhibit C-9; 

Exhibit C-16, Paragraph (8). There is an entry by Mr. Masaracchia indicating 

installation of the wheel assembly and which is dated May 31, 2009. Exhibit C-9, page 1. 

Based on discussions with EFA personnel and review of the records (including 

documentation reflecting shipment of the parts to EFA on June 3, 2009 and a log entry by 

Mr. Masaracchia dated June 4, 2009), however, ASI Misiano concluded that the 

replacement of the wheel assembly had actually been performed on June 4, 2009, in 

reaction to the June 1, 2009 incident. Exhibit C-16, Paragraph (12). It is anticipated that 

ASI Misiano will testify as such at the hearing. 

(7) Prior to the June 1. 2009 flight, the re-assembling of the wheel assembly on the 

aircraft was not approved for return to service by an authorized person. 
That no approval for return to service was made of the re-assembling of the wheel 

assembly on the aircraft is evidenced by the observations of ASI Misiano during his 

investigation, and by the logbooks that he inspected. ASI Misiano reviewed all the 

maintenance logs for the N383CA aircraft during the period April 8, 2009 through June 

1, 2009 and found no record entry of approval for return to service of the nosewheel 

assembly on the aircraft. Exhibit C-9; Exhibit C-16, Paragraph (8). It is anticipated 

that ASI Misiano will testify as such'at the hearing. 

While there were approvals for return to service during the relevant time period, they 

did not reflect actual inspection of the wheel assembly, and therefore could not have 

reflected approval for service of the installation of the wheel assembly. Mr. 

Masaracchia signed off as having performed a 100-hour inspection of the N383CA 

aircraft on April 19, 2009, utilizing a checklist that included a requirement to lift the 

airplane on jacks to inspect the wheel assembly. Exhibit C-9, p.35-70, in particular page 

48. Incident to an interview on June 4, 2009, ASI Misiano asked Mr. Masaracchia if he 

noticed anything when he jacked up the aircraft to inspect the wheels. Mr. Masaracchai 

responded that he did not actually jack up the aircraft to inspect the wheel assembly. 

Exhibit C-16, Paragraph 9-10. Mr. El Sayed signed off as having performed a 50-hour 

inspection of the N383CA aircraft on May 31, 2009, indicating that he had "Lubed 

aircraft, checked tires and brake fluid, serviced battery." There was no indication, 

however, that he checked the wheel assembly of the aircraft. Exhibit C-9, page !; Exhibit 

C-16, Paragraph 11. It is anticipated that ASI Misiano will testify at the hearing that 

neither the entry by Mr. Masaracchia nor the entry by Mr. El Sayed constituted an 
approval for return to service of the re-assembling of the nosewheel assembly on the 

aircraft. 

f8) EFA violated t>91.405rb) of the FARs. 

§91.405(b) of the FARs states: "Each owner or operator of an aircraft... shall 

ensure that maintenance personnel make appropriate entries in the aircraft maintenance 

records indicating the aircraft has been approved for return to service." Thus, EFA, as 

operator of the aircraft, was responsible for ensuring that its maintenance personnel 

make appropriate entries in the maintenance records indicating the aircraft has been 

approved for return to service. Under §43.9(a)(I)-(4) of the FARs, "each person who 

performs maintenance shall make an entry in the maintenance record of that equipment 

containing (1) a description of the work; (2) the date of completion of the work; (3) the 

name of the person performing the work if other than the person approving the work; and 

(4) if the work performed on the aircraft has been performed satisfactorily, the signature, 

certificate number, and kind of certificate held by the person approving the work." 

§Section 43.9(a)(4) of the FARs states that the signature of the person approving the 

work "constitutes the approval for return to service only for the work performed." Thus, 

each maintenance task requires a log entry not only identifying which mechanic did the 

work and when, but also an approval for return to service in the form of a signature by 

the mechanic. In this case, there was no such log entry, The above-referenced log 

entries by Messrs. Masaracchia and El Sayed did not satisfy the requirements under 

§91.405(b) of the FARs with respect to the re-assembly of the nosewheel assembly that 

occurred between April 8, 2009 and June 1, 2009. Exhibit C-16, Paragraph (13). It is 

anticipated that ASI Misiano will testify as such at the hearing. 
(.9.)EFA violated $91.407(a)(n of the FARs. 

§91.407(a) of the FARs states that "No person may operate any aircraft that has 

undergone maintenance, preventive maintenance, rebuilding, or alteration...unless it has 

been approved for return to service by a person authorized under Section 43.7 of this 

chapter." As indicated above, EFA operated the aircraft on June 1, 2009; maintenance 

had been performed on the aircraft within the previous two months (specifically the reassembly of the'nosewheel assembly);" and there was no approval for return to service for 

this maintenance prior to the flight. Thus, EFA violated § 91.407(a) of the FARs. 

(10) EFA violated §91.407fa)f2)ofthe FARs. 

§91.407(a)(2) of the FARs states that "No person may operate any aircraft that 

has undergone maintenance, preventive maintenance, rebuilding, or alteration...unless 

the maintenance record entry required by §43.9 or §43.1 ], as applicable, of this chapter 

has been made." As indicated above, EFA operated the aircraft on June 1, 2009; 

maintenance had been performed on the aircraft within the previous two months 

(specifically, the re-assembly of the nosewheel assembly); and there was no maintenance 

record entry for this maintenance as required by §43.9 of the FARs. Thus, EFA violated 

§91.407(a)(2)oftheFARs. 

(1 OEFA violated §91.7(a) of the FARs. 

§91.7(a) of the FARs states that "no person may operate a civil aircraft unless it is 

in an airworthy condition." To be determined airworthy, an aircraft traditionally has 

been required to meet a two-pronged test: the aircraft (1) must conform to its type 

certificate, if and as that certificate has been modified by supplemental type certificates 

and by Airworthiness Directives; and (2) must be in condition for safe operation. 
DOT/FAA Legal Interpretation, Exhibit C-17. This test is found in 49 USC §44709, 

which provides: "The Administrator shall issue an airworthiness certificate when the 

Administrator finds that the aircraft conforms to its type certificate and, after inspection, 

is in condition for safe operation (emphasis supplied)." In other words, for an aircraft to 

be airworthy, it must be determined after inspection to be safe for flight. If a required 

inspection is not performed, then the aircraft cannot be determined to be safe for flight. 

In this'cas'e," EFA performed a re-assembly of the nosewheel on the aircraft, but there was 

no approval for return to service for this maintenance. Thus, there presumably was no 

inspection to determine whether the installation was done properly. Thus, it cannot be 

said that the aircraft was safe for flight and, based on 49 USC §44709, where an aircraft 

has not been inspected such as to determine its safety for flight, it cannot be granted an 

airworthiness certificate, i.e,. it is not airworthy. Thus, by virtue of the fact that EFA 

operated the aircraft without an approval for return to service of the maintenance, it 

operated the aircraft in an unairworthy condition in violation of §91.7(a) of the FARs. 

(12)A civil penaltv of $15.300 is appropriate. 

EFA is a small business concern that does not hold a certificate, and the violations 

were covered under 49 USC §46301(a)(5)(A).'* The range of civil penalty sanctions for 

such an entity under FAA Order 2150.3B can be minimum ($550-$2,199), moderate 

($2,200-54,399), or maximum ($4,400-$ 11,000). Exhibit C-18. 

For purposes of the Sanction Guidance Table (SGT) in FAA Order 2150.3B, EFA 

falls under the category of "Individuals and General Aviation - Owners, Pilots, Repair 

Stations, Pilot Schools and Maintenance Personnel." Exhibit C-19. In this case, there 

' Coverngeoflliisslalutc includes 49 USC §44701. wliich empowers the FAA lo prescribe regulations 

pcnaining to llie safely of fliglu. 
was a "failure to make proper entry in aircraft log" in two respects: the failure to make 

the log entry describing the work, etc., and the failure to make an entry approving the 

aircraft for return to service. The SGT calls for a "Minimum to Moderate" civil penalty. 

Id. The circumstances here were aggravating in that not only were the entries were not 

made, but it could not even be determined which individuals or individuals actually did 

the maintenance. Thus, a high-moderate civil penalty of $4,399 is appropriate for each of 

these violations(total = $8,798). There was also a violation of "Operation.of unairworthy 

aircraft," for which the SGT recommends a civil penalty of "moderate to maximum." Id. 

Because of the aggravating circumstances described above, a high-maximum civil 

penalty of $11,000 is appropriate. Thus, a total civil penahy of $19,798 ($8,798 plus 

$ 11,000) is appropriate. A civil penalty of $ 15,300, as is proposed here by the Agency, is 

certainly appropriate. 

WHEREFORE the Agency requests that the ALJ issue an Order assessing a civil penalty 

of$15,300. 

ALFRED R. JOHNSON, JR. 

REGIONAL COUNSEL 

By: 

Zachary 

Attorney 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Phone: (718)553-3258 

Telefax: (718)995-5699 

12 
^ [ 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Agency's Witness/Exhibit List has been sent on this date via 

first class mail and facsimile to: 

The Honorable J.E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Telefax: 202-366-7536 

John Zaremba 

President, Empire Flight Academy 

Republic Airport, Route 109 

Hangar 3 

Farmingdale, NY 11735 

Telefax: 631-694-0172 

I hereby certify that a copy of the foregoing Agency's Witness/Exhibit List has been sent on this date via 

first class mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W10000 

Date: MAR 1 3 2012 

^/! ^ Hooks 

Paralegal Specialist 

1 Aviation Plaza 

Jamaica, NY 1143 

DOCKET